River Valley, Inc. v. Dubuque County

• Decision Date: 10 December 1974
• Docket Number: 74-1588,Nos. 74-1500,s. 74-1500
• Parties: RIVER VALLEY, INC., a corporation, Appellee, v. DUBUQUE COUNTY et al., United States of America and Rowland F. Kirks, Director, Administrative Office of the U.S. Courts, Appellants. UNITED STATES of America and Rowland F. Kirks, Director, Administrative Office of the U.S. Courts, Petitioners, v. Hon. Edward J. McMANUS, Chief Judge, United States District Court for theNorthern District of Iowa, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 582

507 F.2d 582

RIVER VALLEY, INC., a corporation, Appellee, v. DUBUQUE COUNTY et al., United States of America and Rowland

F. Kirks, Director, Administrative Office of the

U.S. Courts, Appellants.

UNITED STATES of America and Rowland F. Kirks, Director, Administrative Office of the U.S. Courts, Petitioners, v. Hon. Edward J. McMANUS, Chief Judge, United States District

Court for theNorthern District of Iowa, Respondent.

Nos. 74-1500, 74-1588.

United States Court of Appeals, Eighth Circuit.

Submitted Oct. 16, 1974.

Decided Dec. 10, 1974.

Neil H. Koslowe, Atty., Appellate Section, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for appellants.

James H. Reynolds, Dubuque, Iowa, for appellee.

Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.

PER CURIAM.

Rowland F. Kirks, the Director of the Administrative Office of the United States Courts (hereinafter called the Director), has filed a petition for a writ of mandamus and, alternatively, a notice of appeal from an order to show cause why he should not be held in contempt under 18 U.S.C. 401(3) for refusing to authorize payment of certain fees in a civil proceeding as ordered by the district court pursuant to 28 U.S.C. 1915 and 753(f).

River Valley, Inc., is a private nonprofit corporation created pursuant to 42 U.S.C. 2790 for the purpose of coordinating various welfare programs under the Economic Opportunity Act of 1964, the Economic Opportunity Act of 1964, 42 U.S.C. 2781 et seq. When various state and federal agencies sought to change River Valley into a public agency under that act, River Valley brought suit in the district court to block the change and to get financial and technical assistance from those state and federal agencies. Among the parties were the national, state and regional directors of the federal Office of Economic Opportunity. Injunctive relief was sought against the federal agencies as well. The United States Attorney for the State of Iowa appeared on behalf of the federal agencies and officers. when the district court denied relief, River Valley sought leave to appeal to this court in forma pauperis. The United States appeared by and through the Assistant United States Attorney, Robert Sikma, and filed a resistance to this motion, based, inter alia, on the ground that River Valley was a corporation and, as such, not entitled to appeal in forma pauperis under 28 U.S.C. 1915. The district court, the Hon. Edward J. McManus presiding, ruled to the contrary. He found that River Valley's appeal was not frivolous and granted leave to appeal in forma pauperis. When the United States appeared on appeal before this court, it filed an appellee's brief on the merits of the case but did not resist the in forma pauperis order. ¹ River Valley was allowed, pursuant to the district court's order, to docket the case without filing fee and proceed under our Rule 11 in forma pauperis. ² After certification under 1915 and 753(f) the court reporter prepared a full transcript for the appeallant corporation and on April 2, 1974, submitted his claim to the Administrative Office for payment in the sum of $197.00. On April 26, 1974, the Administrative Office refused on the ground that 1915 and 753(f) did not authorize free transcripts for corporations. On June 3, 1974, the district court entered the order to show cause why the Director should not be held in contempt. This appeal and alternative petition for a writ of mandamus followed.

The Director urges that the district court erred in finding River Valley eligible to proceed in forma apuperis since 1915 was intended to apply only to natural persons. See S.O.U.P., Inc. v. Federal Trade Commission, 146 U.S.App.D.C. 66, 449 F.2d 1142(1971); Atlantic S.S. Corp. v. Kelley, 79 F.2d 339 (5th Cir. 1935); Quittner v. Motion Picture Producers & Distributors, 70 F.2d 331 (2d Cir. 1934); Honolulu Lumber Co., Ltd. v. American Factors, Ltd., 265 F.Supp. 578 (D.Hawaii 1966), aff'd on other grounds, 403 F.2d 49 (9th Cir. 1968). ³

The Director's separate appeal from the show cause order must be dismissed as premature. The appeal is from an interlocutory order, not a final order appealable to this court. See United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbedick v. United States,309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Duffy v. Dier, 465 F.2d 416 (8th Cir. 1972). It is urged that the Supreme Court's recent dicision on the merits of the Watergate tapes question in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), provides support for an appeal at this stage of the contempt proceedings. However, the Court explained that in the 'unique setting' of that case, a confrontation between two branches of government, traditional limitations on the right of appeal were not applicable. Those considerations do not obtain here, and the appeal is premature.

Alternatively the Director urges that mandamus should lie since the district court was without authority to certify a corporation eligible under 1915. The extraordinary writ of mandamus may lie where a district judge usurps power and acts beyond his jurisdiction. But even if the district court may have erred in its construction of 1915 (which we do not decide), mandamus is not appropriate here. A district court has initial authority under 1915 and 735(f) to authorize in forma pauperis appeals. Steffler v. United States, 319 U.S. 38, 63 S.Ct. 948, 87 L.Ed. 488 (1943). The mere fact that a court acts erroneously is not usurpation of power. 'Jurisdiction to decide is jurisdiction to make a wrong as well as the right decision.' Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir. 1969). As the Supreme Court observed in Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106 (1953):

Jurisdiction need not run the gauntlet of reversible errors. The ruling on a question of law . . . was made in the course of the exercise of the court's jurisdiction to decide issues properly brought before it. Ex parte American Steel Barrel Co., 230 U.S. 35, 45-46, (33 S.Ct. 1007, 57 L.Ed. 1379) (1913); Ex parte Roe, 234 U.S. 70, 73, (34 S.Ct. 722, 58 L.Ed. 1217) (1914). Its decision against petitioner, even if erroneous-- which we do not pass upon-- involved no abuse of judicial power.

Id. at 382, 74 S.Ct. at 148. See also Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).

The Director urges that as a third party, however, he has no other recourse to obtain a ruling and that mandamus should lie in such an exceptional case as this. We disagree. Although the Director and the Administrative Office were not named parties to the earlier litigation, they are nevertheless bound by the earlier judgment against the United States. The question of whether River Valley was entitled to proceed in forma pauperis on appeal was decided adversely to the United States in the district court and under the doctrine of res judicata, that judgment is not now open to collateral attack. The district court's memorandum and order of February 11, 1974, certifying that the appeal was not frivolous and allowing River Valley to proceed in forma pauperis invokes 28 U.S.C. 753(f) and 1915(a) which require the United States to pay the court reporter's expenses in preparing the transcript. The district court expressly ordered the United States to pay the expenses. In the original action the United States directly contested, through the United States Attorney, the order allowing the appeal in forma pauperis. On the appeal of the merits, the government did not renew its resistance by motion or appeal as to the in forma pauperis order. ⁴

The Supreme Court observed in Drummond v. United States, 324 U.S. 316, 65 S.Ct. 659, 89 L.Ed. 969 (1945):

If the United States in fact employs counsel to represent its interest in a litigation or otherwise actively aids in its conduct, it is properly enough deemed to be a party and not a stranger to the litigation and bound by its results. Compare United States v. Candelaria, 271 U.S. 432, (46 S.Ct. 561, 70 L.Ed. 1023; 10 Cir.,) 16 F.2d 559, with Logan v. United States, (10 Cir.,) 58 F.2d 697. But to bind the United States when it is not formally a party, it must have a laboring oar in a controversy . . ..

Id. at 318, 65 S.Ct. at 660; see also Restatement of Judgments 84 (1942). Clearly, the United States had a laboring oar in the opposition to the in forma pauperis...